February 2008

Workers compensation: pain and suffering threshold and multiple injuries

The NSW Workers Compensation Commission has confirmed it is not possible to aggregate two separate incidents as one "injury" under the definition of 322(2) of the Workplace Injury Management and Workers Compensation Act 1998 where the pathology suffered in each incident is different.

The Case

In Department of Juvenile Justice v. Edmed [2008] NSW WCC PD 6 (18 January 2008) an Arbitrator of the Commission awarded a worker pain and suffering when he was found to meet the 10% threshold based on two injuries to his wrist in March and August 2004. An Approved Medical Specialist assessed 9% whole person impairment for the first incident and 4% for the second incident. The two incidents combined resulted in an impairment of 13%. The Arbitrator found the impairment effects of the second injury tipped the worker over the pain and suffering threshold to enable recovery of a section 67 lump sum.

The employer appealed arguing the injuries were separate and the impairment flowing from each could not be added together for the worker to qualify for pain and suffering.

Deputy President Bill Roche agreed with the employer. He held the worker had suffered two separate and distinct injuries, observing the AMS assessed whole person impairment resulting from each discrete injury as distinct from a single indivisible impairment resulting from two separate incidents.

Under s.322(2) of the 1998 Act, impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker. In this case, the worker sought to argue both incidents gave rise to the same injury and therefore the impairment flowing from each should be aggregated to entitle him to pain and suffering.

Deputy President Roche rejected the worker’s argument, finding the worker had suffered different injuries, or pathologies, in the two incidents. In other words, each incident occasioned damage to a different part of the wrist. S.322(2) therefore did not apply because the resulting pathology from each incident was different. The injuries were therefore not "the same" for the purposes of s.322(2).

Deputy President Roche observed it would be appropriate to aggregate the effects of two incidents if a worker suffers "the same injury" in each incident.

In this case, the evidence did not support that conclusion.

Although the two incidents combined resulted in an impairment of 13%, the evidence did not establish the worker suffered in either of the incidents, on its own, a loss which resulted in a degree of permanent impairment of 10% or more.

The award for pain and suffering was therefore revoked.

Implications of the decision

The decision confirms impairments from the same injury are to be assessed together even if they have resulted from different incidents but the pathology (injury) resulting from each incident must be identical. If the pathology relative to each incident is different, it is not possible to aggregate the assessment of impairment for the purposes of pain and suffering compensation.

Where there is a pain and suffering claim involving multiple incidents, careful assessment of the pathology caused by each incident is required to determine whether it is appropriate to aggregate the assessments under s.322(2) of the Act. This of course will remain the case until the government abolishes pain and suffering altogether as was proposed in draft legislation at the end of last year. More on that in future bulletins.

Further legislation reforms

On 27 November 2007, the NSW State Government introduced into Parliament, a Bill proposing further extensive reforms to the NSW workers compensation legislation. The status of the Workers Compensation Legislation Amendment (Benefits) Bill is unclear. It is anticipated the Bill (possibly in amended form) will become law in the next session of parliament.

In addition to abolition of pain and suffering, the December 2007 Bill proposed enhancement of section 66 impairment benefits and death lump sum benefits, changes to dependency requirements on death claims and payment of funeral costs.

Importantly, the Bill also sought to grant jurisdiction to the WCC to determine medical cost claims, where those costs are yet to be incurred and contained a relaxation of the commutation restrictions by allowing WorkCover to approve commutations in circumstances where all of the requirements of section 85FA have not been met. Stay tuned for further information on these reforms in upcoming bulletins.